San Francisco Chronicle - (Sunday)
U.S. attorney general joins foes of stayhome orders
Conservatives rallying against state governors’ shelterinplace orders have found an ally in President Trump’s attorney general, William Barr.
“The idea that you have to stay in your house is disturbingly close to house arrest,” Barr said Tuesday in an interview with conservative talkshow host Hugh Hewitt. If governors refuse to roll back unreasonably restrictive orders and opponents file suit, he said, the Justice Department will “file statements of interest and side with the plaintiffs.”
Governors may be violating individuals’ civil rights or interfering with national commerce if they don’t follow Trump’s “superb and very commonsensical guidance,” Barr added, without elaborating,
Legal analysts contacted by The Chronicle were unimpressed.
“States have always had broad quarantine powers,” said David A. Carrillo, executive director of the California Constitution Center at UC Berkeley. While the federal government can seek court permission to file arguments in support of individuals claiming violations of their rights, he said, “individual rights are not absolute, and states can limit religious and other liberty interests with neutral laws.”
Michelle Mello, a professor of law and medicine at Stanford University, said Barr could intervene if a state interfered with interstate commerce — for example, by closing its borders to outofstate truckers — but otherwise, people can go to court to protect their own rights. She said Barr’s “house arrest” comment “fans these flames of protest at a time where the country needs to be coming together.”
A few lawsuits have already been filed by religious groups challenging restrictions on public gatherings. Barr’s office filed arguments on April 14 after the mayor of Greenville, Miss., banned worshipers from meeting in their cars for driveup services, and police issued $500 citations to congregants who drove to a church parking lot. The mayor quickly backed off, after speaking with Gov. Tate Reeves, and allowed worshipers to assemble in their cars, spaced at least 6 feet apart, and listen to their pastor on the radio while keeping their windows rolled up.
Judges in Kansas and Kentucky have ordered those states to allow drivein services. In California, where Gov. Gavin Newsom has allowed drivein services with safety precautions, a suit demanding inperson religious services was filed April 13 on behalf of two pastors in Riverside County and two parishioners in San Bernardino County.
Their San Francisco lawyer, Harmeet Dhillon, argued in court papers that the state was “relegating all faith activities to a secondclass status” while classifying “coffee baristas, burgerflippers and laundromat technicians” as parts of “essential” services that can remain open during the pandemic.
Lawyers for the state and the counties argued that their stayathome orders were urgent public health measures that did not discriminate against religious services. On Wednesday, U.S. District Judge Jesus Bernal of Los Angeles denied a temporary restraining order to allow inperson services to resume, though he has not yet issued a written ruling stating his reasons.
Dhillon, a Republican national committeewoman, founded the nonprofit Center for American Liberty last year and sued the state Wednesday over Newsom’s allocation of $75 million to pay unemployment benefits for undocumented immigrants. She has indicated that a broader suit against the state’s shelterinplace order could be forthcoming.
“The science seems to be showing that virtual house arrest is not healthy or necessarily effective to stop the spread of the disease,” Dhillon said by email. “At some point, the government is going to have to justify its draconian orders in court, and that day is coming soon . ... You can expect to see more lawsuits filed in coming days on various aspects of COVID orders, not just in California but elsewhere.”
On Friday, Dhillon and another lawyer filed a federal court suit in Los Angeles against the state on behalf of seven shutdown businesses, including restaurants, a petgrooming shop and a gondola company, saying their closure as “nonessential” operations was discriminatory and violated their state and federal constitutional rights.
One statewide suit was filed in Pennsylvania last month by a political committee, a real estate agent and owners of a golf course challenging temporary shutdowns of businesses whose services were not classified as “lifesustaining.” The state Supreme Court ruled against them April 13, saying the closure was a temporary measure that did not confiscate private property or interfere with freedom of speech.
The court cited the U.S. Supreme Court’s 2002 ruling rejecting property owners’ challenge to a 32month moratorium on development at Lake Tahoe while a regional agency considered a longterm plan for the Tahoe Basin. That ruling suggests that, in the current crisis, the Constitution would allow “temporary actions” that restricted use of property, said Bernadette Meyler, a constitutional law professor at Stanford.
Another important ruling dates from 1905, when the Supreme Court upheld mandatory smallpox vaccinations in Cambridge, Mass., during an outbreak of the disease, and a $5 fine against a resister who said the order violated his liberty.
That case should refute any current argument that the constitutional guarantee of liberty “includes the right of individuals to make decisions about their own health in instances where those decisions could endanger others,” said Erwin Chemerinsky, the law school dean at UC Berkeley. And while Barr’s department can argue in support of claims by private citizens, he said, “there is no legal authority for the federal government to override closure orders.”